Case comment - Caldwell v EasyJet Airline Co Ltd Sheriff Court (Lothian and Borders) (Edinburgh) 15 October 2015
Introduction
In essence, Caldwell v EasyJet [2015 S.L.T. (Sh Ct) 223; 2015 G.W.D. 34-546] is acase under the EC Regulation on compensation and assistance for denied boarding or cancellation of flights (EC Denied Boarding, Compensation and Assistance Regulation), EC Regulation 261/2004 [Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ L46, 17.2.2004, p 1) (hereafter EC passenger rights regulation), which is embedded into UK law by EC Regulation 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005 (SI 2005/975)], and poses inter alia the interesting question of whether non-assistance at the airport to timely allow passengers to check-in or drop their baggage and clear security, customs and passport control to reach the gate in time can be classed as denied boarding.
Further question on the relationship of the Montreal Convention with the EC Passenger Rights Regulation, that is EC Regulation No 261/2004, jurisdiction over claims under the Montreal Convention and the reach of standard terms and conditions obliging the passenger to present themselves on time at the departure gate.
The facts
The journey
Niall Caldwell and his wife Aileen McLuckie, both domiciled in Edinburgh, went on holiday in Sicily and had booked flights via an agent with EasyJet, from Edinburgh to London Gatwick and London Gatwick to Catania, Sicily. On their return journey they encountered problems. With boarding passes already in hand, they presented themselves 2 hours before the departure time at the EasyJet check-in desk to drop off their baggage. However the queue there was substantial, including passengers to four different flight destinations. The queue moved so slowly that Mr Caldwell after 30 minutes went up to the desk to ask EasyJet to prioritise the passengers on the next flights first, although this was rejected. After another 30 minutes he and his wife had dropped off their baggage only to find yet another long and slow moving queue at security, where also no system of prioritisation was in operation. Mr Caldwell’s requests, first to EasyJet and then to security staff to prioritise them was denied. EasyJet staff told him that EasyJet had no control over the security queue and airport security staff’s answer was that only EasyJet could require such prioritisation and had not done so.
After clearing security and passport control and running to the gate the pursuers arrived at the gate at the scheduled departure time only to be told that the plane had left and their luggage had been unloaded. They were not offered any assistance and told that if they wanted to fly on other EasyJet flights they would have to pay full fare and the next ones scheduled were only two and three days’ time. However, the pursuerswere able to find and buy two tickets to London from British Airways(BA) the same day, but this cost them more than double the price of the flights they had just missed. BA staff guaranteed that they would manage to get to the gate on time, even though there was only one hour left to departure. Indeed a BA representative escorted them through security and ensured their timely arrival at the gate. Once the pursuers arrived at London Gatwick they managed to pick up on their initial itinerary and board the EasyJet flight to Edinburgh.
The complaints and action
Back home, the pursuers complained and askedEasyJetto refund of their costs for the extra BAflights. EasyJet did not accept liability but told the pursuers that it had been their responsibility to reach the departure gate in time for their flight as indicated in the terms and conditions. However EasyJet confirmed that out of the 180 passengers booked on the EasyJet flight from Catania to London that day only 168 actually flew.
The pursuers brought action against EasyJet at Edinburgh Sheriff court for damages for breach of contract and for compensation and reimbursement due to denied boarding according to the EC Passenger Rights Regulation. The defender rejected the claims, challenged jurisdiction under the Montreal Convention, claimed exclusivity of the Montreal Convention and,alternatively, that the concept of “denied boarding” was restricted to the practice of overbooking flights.
The decision and reasoning
Jurisdiction:
The contract between the parties was a consumer contract, normally governed by rule 3(1) of Schedule 8 to the Civil Jurisdiction and Judgments Act 1982, where jurisdiction was given at the courts of the place where the consumer was domiciled [see r.3(1)(b) of Sch.8 of the Civil Jurisdiction and Judgments Act 1982]. However, EasyJet was only contracted for the flights alone and rule 3(2) provided for an exception for transport contracts. Therefore the matter of damages arising of the contract of carriage was instead governed solely by the Montreal Convention [Montreal Convention for International Carriage by Air 1999 which was ratified by the United Kingdom on 29 April 2004 and given the force of law in the United Kingdom on 28 June 2004 by the Carriage by Air Act 1961, s.1 and Sch.1B as amended by the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002 (SI 2002/263). Exclusivity of the convention for jurisdiction, cause of action and sole remedy for a passenger who claims against a carrier for loss, injury and damage sustained in the course of, or arising out of, international carriage by air was also confirmed by Lord Hope of Craighead, in his speech in Abnett v British Airways Plc [1997] A.C. 430; 1997 S.C. (H.L.) 26; 1997 S.L.T. 492]. Whether jurisdiction under the Montreal Convention was fulfilled in favour of the Edinburgh Sheriff court was disputed by the defendant, however it had not raised any issue on the matter of jurisdiction over the claims under the Passenger Rights Regulation.
Article 33 of the Montreal Conventionestablished jurisdiction before the courts in the territory of the state where the carrier had its domicile or principal place of business of where it had its place of business through which the contract had been made, or at the place of destination. While,EasyJet had its domicile and principal place of business in Luton, England and while the contract had been made via an agent also situated in England, the place of destination,it was held, was Edinburgh and thus the Edinburgh Sheriff court had jurisdiction.Sheriff T Welsh QC rejected EasyJet’s submission that there were four separate and distinct, independent and unconnected contracts between the parties, one for each flight with individual costs attached, to ensure that flights did not become dependent on each other and to allow maximum flexibility to the passengers; and thus,that the relevant contract in dispute was the flight Catania to London with the consequence that place of destination was London.Instead the Sheriff found that “the flights sold and the contract concluded involved a return trip, beginning and ending at the passengers’ home city of Edinburgh. There was a single check in in advance of departure and boarding passes were issuedby the carrier for all directly connection flights.”Irrespective of EasyJet’s arguments proffered,the Sheriff held that the flights were realistically connected and the return flight from Catania was to Edinburgh albeit via London. Place of destination was therefore Edinburgh.
This conclusion, he argued, was also supported by the Australian case Gulf Air Co GSC v Fattouh[[2008] NSWCA 225] and a United States case, Butz v British Airways [421 F Supp 127(E.D. Pa. 1976)]. The former case concerned a round trip from Beirut to Sydney, Australia and back to Beirut and the court in New South Wales, Australia had held that the place of destinationwas Beirut which was also the place of departure. In the latter US case, there had also been a round trip from London to New York with tickets purchased in London. The US District Judge had declined jurisdiction [based on jurisdiction provisions of the Warsaw Convention on the International Carriages by Air, 1929, the predecessor to the Montreal Convention, which are near identical to those of the Montreal Convention]and had rejected the argument that the place of destination of the outward leg was New York. He had found that the opposite view submitted that each place where a particular flight terminated was relevant would lead to the conclusion that each flight had a different place of destination, resulting in different places of jurisdiction for each segment of the entire journey and this was against the aim of the convention of uniformity with respect to a single ticket.
Relationship of Montreal Convention and EC Passenger Rights Regulation:
The tension between the Montreal Convention and the EC Regulation had already been subject to considerable litigation, in national courts and by the European Court of Justice. Whether a matter fell within the scope of the Montreal Convention or concerned an aspect of the Community legal order was to be determined in accordance with the principles laid down by relevant decisions of the Court of Justice of the European Union (CJEU). Drawing on the analysis in Dawson v Thomson Airways Ltd [[2014] EWCA Civ 845; [2015] 1 W.L.R. 883; [2014] 4 All E.R. 832, a case dealing with flight cancellation, deciding to be bound by case-law of the CJEU that an obligation to pay compensation under the Regulation lay outside the scope of the Montreal Convention. The court in Dawson referred to case-law of the CJEU such as C344/04 R. (on the application of International Air Transport Association (IATA)) v Department of Transport [2006] E.C.R. I-403; [2006] 2 C.M.L.R. 20; Case C-402/07 Sturgeon v Condor Flugdienst GmbH [2010] 2 All E.R. (Comm) 983; [2010] 1 Lloyd's Rep. 522; C-581/10 Nelson v Deutsche Lufthansa AG [2013] 1 All E.R. (Comm) 385; [2013] 1 Lloyd's Rep. 49; and C-139/11 CuadrenchMoré v KoninklijkeLuchtvaartMaatschappij NV [2013] 2 All E.R. (Comm) 1152; [2013] 1 Lloyd's Rep. 341]the Sheriff found that with respect to the claim for compensation and reimbursement due to denied boarding, as distinct from a claim for damages, the case-law of the CJEU clearly established the EC Regulation as an independent and separate compensatory regime that dealt with claims arising at an earlier stage than those under the Montreal Convention. As the CJEU had decided, the EC Regulation aimed at compensating the damage constituted by the inconvenience that delay and cancellation to flights caused. This was also true, as in this case, for the inconvenience caused due to denied boarding and insofar the principles laid down by CJEU case-law with regard to the EC Regulation had to be applied.
This result was also in line with decisions taken by taken by Sheriff Principal Lockhart in Vergara v Ryanair Ltd [2014 S.L.T. (Sh Ct) 119], and Sheriff Principal Scott in Weir v Ryanair[Glasgow Sheriff court, 22 January 2014, unreported], that claims for compensation under the EC Regulation were not covered by a clause in the general terms and conditions of Ryanair subjecting claims for damages to a 2-year time bar. Compensation claims were to be assessed under the EC Regulation whereas damages claims were regulated by the Montreal Convention.
Claim for damages for breach of contract
This claim was governed by the Montreal Convention. While the pursuers undoubtedly incurred extra costs purchasing the BA tickets the claim for damages failed on two grounds: Firstly, the pursuers had difficulty in attaching liability to the defender for breach of contract and, secondly, they failed to demonstrate that it was the defenders breach that caused their damage. The pursuers had accepted clauses in the standard terms and conditions putting the onus on them to reach the departure gate in time for the flight. The clauses also stipulated that failure to do so, allowed the carrier to refuse to carry the passenger, and that the passenger had forfeited the seat and any right to compensation, subject to international and domestic passenger rights regulations to the contrary. The conditions of the contract between the parties read:
“Cl. 12.2.1: You must arrive at the airport sufficiently in advance of the scheduled Flight departure time to permit completion of Government formalities and security procedures. Government formalities and security procedures may vary at different airports and for particular Flights. It is Your responsibility to ensure that You comply with these formalities and procedures, details of which will be available at the time Your booking is made.”
“Cl. 12.4.1: Please note: You must present Yourself at the boarding gate no later than 30 minutes prior to scheduled time of departure or You may not be accepted for travel, and will forfeit Your seat even if [special add-ons were purchased]….”
“Cl. 12.4.3: If You present Yourself at the boarding gate outside the time restrictions outlined in this Article 12 (Online Check-in and Airport Procedures), or You are improperly documented and not ready to travel, We may refuse to carry You and You will forfeit Your seat and any right to compensation, subject to any passenger rights pursuant to any international or domestic laws or regulations to the contrary.”
According to the Sheriff, the pursuers thus had taken the entire responsibility for clearing security, customs and passport control and could not attribute the delays encountered there to the defender. The vital link on the chain of causation was therefore fatally absent.
Claims for compensation and reimbursement under the EC Regulation
The EC Passenger Rights Regulation, however, allowed claims for compensation and reimbursement in case of denied boarding [Art 4.3 EC Reg. 261/2004 referring to rights of compensation according to Art.7 and to reimbursement of re-routing according to Art 8 of the same Regulation]. The Sheriff decided that the case at hand was indeed one of denied boarding as per the principles applied by the CJEU. According to CJEU [In C-22/11 Finnair Oyj v Lassooy, [2013] 1 C.M.L.R. 18 and C-321/11 Rodriguez Cachafeiro v Iberia, LineasAereas de Espana SA, [2013] 1 C.M.L.R. 19 with reference inter alia to Case C-344/04 R. (on the application of International Air Transport Association (IATA)) v Department of Transport [2006] ECR I-403, [2006] 2 C.M.L.R. 20 at [69] and Case C-549/07 Wallentin-Hermann v Alitalia - LineeAereeItalianeSpA[2008] ECR I-11061, [2009] 2 C.M.L.R. 9 [18]] the Regulation definition of denied boarding [see Art 2(j) EC Reg 261/2004 which states: “‘denied boarding’ means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation”]was not linked or limited to cases of overbooking, as it had been in EC Regulation 295/91. The latter was now superseded by EC Regulation 261/2004. Indeed the legislative history and the Recitals of the current EC Regulation clearly showed that a broad interpretation of the rights granted to passengers by the EC Regulation was required and that the concept of denied boarding also included other grounds, such as operational reasons [see C-22/11 Finnair v Lassooy, [20 - 26] and C-321/11 Rodriguez Cachafeiro v Iberia [20 -27]]. In C-321/11 Rodriguez Cachafeiro v Iberia the passengers were through no fault of their own denied boarding because the carrier had wrongly thought they would miss a connecting transatlantic flight and resold their seats. In C-22/11 Finnair v Lassooy a strike had affected earlier flights and the carrier decided to “bump” Mr Lassooy to a later flight in order to give priority to passengers from the affected flights. In both cases the CJEU found that these were cases of denied boarding which were not justified by reasonable grounds [see Art 2(j) EC Reg 261/2004].
According to the Sheriff, the present case also fell within this concept. The defender’s view that this was simply a case of the passengers being late for boarding could not be accepted. In agreement with the views presented by Advocate General Bot in Finnair[at [AG46- AG48] and also [AG39] and [AG55]], denied boarding was to include cases where carriers for operational reasons wrongly denied boarding to passengers in contravention of the Regulation. Passengers “bumped” to another flight, as in Finnair, or in other circumstances as here, would otherwise be left abandoned to their fate without the payment of compensation for the damage caused, but also, and above all, without assistance, to provide for the immediate needs, on the spot, of the passengers.The division of responsibilities between the parties to an air passenger transport contract under the EC Regulation was as set out in the words of AG Bot in Finnair: “55. It is indeed true that the airport strike cannot be attributed to Finnair. However, as is apparent from the travauxpréparatoires for the adoption of Regulation No 261/2004, the system of compensation and assistance for air passengers established by the EU legislature is designed, above all, to protect those passengers. Thus, that legislature adopted a simple solution according to which all the obligations relating to that scheme are the responsibility of the carrier operating the flight. It is a solution which is practical since the operating carrier has personnel and agents in the airports to help passengers. It is a system which is direct and simple, and therefore easily understood by passengers.”
The AG’s analysis had been accepted by the CJEU in its Finnair decision without any objections. Thus, the answer to the question who, within the framework of the Regulation, was responsible for the mismanagement of the queue at the EasyJet check-in that morning and the consequences of the bottleneck causing passengers delay in passing through security, customs and passport checks was EasyJet. Thus, a passenger who presentedhim/herself for check in on time for a confirmed reserved seat and who was not at fault was entitled to compensation if the carrier failed to take reasonable steps to ensure passage through its own bag drop and airport security queues. A similar approach had also been taken by a German decision of the AmtsgerichtErding [Fist Instance Court for Small Claims; AG Erding, 05.07.2006, Az.4 C 309/06], where passengers arrived on time for check in for a reserved flight but due to insufficient check in staff could not check in on time to board the flight.